The Florida probate lawyers, attorneys, and paralegals, at The Coleman Law Firm, PLLC, assist those who need legal representation in Florida probate and trust administration, elder law matters, and guardianships,in probate courts in Clearwater, Pinellas County, and throughout the State of Florida. If you need a Florida probate lawyer in Clearwater or Pinellas County, please call us toll free at 866-510-9099.

As experienced Florida probate and trust lawyers, we know how important it is for the probate estate administration process to be completed as soon as reasonably possible, and as efficiently as possible, regardless of whether the estate is a summary administration, simply to probate a deed, or a formal administration with a probate estate that is subject to the federal estate tax. Our probate lawyers and paralegals provide our clients with timely information regarding the status and activities of your Florida probate or trust case. We are familiar with Florida probate law, Florida trust law, Florida guardianship law, probate rules, probate courts and the Florida probate forms necessary for complying with Florida probate law. Our probate lawyers and trust attorneys counsel our clients on each phase of the Florida probate process, estate administration or the trust administration process and provide your with direction for each step that you must complete. Our Florida probate and trust lawyers and attorneya, and paralegals, promptly respond to all questions that are asked, and patiently provide our clients with a complete explanation of what needs to be done to comply with Florida probate law, and why those steps are necessary under the Florida probate code.

Our legal fees for assisting you in the administration of a probate estate or a trust administration will depend on the facts and circumstances of your particular case. Often we will work on a flat fee or fixed fee basis, especially for a summary administration. Other times, a probate lawyer's or trust attorney's hourly rates are appropriate. In particular, if your probate administration is for the sole purpose of a real estate probate, i.e, transferring title to real property, our probate lawyer usually will work on a fixed fee basis, so that you will know from the beginning exactly what your total cost will be for the Florida probate process.

If you need legal representation in Florida for a probate administration, trust administration, guardianship, or elder law matter please contact The Clearwater Probate Lawyer, for your Florida probate, trust or guardianship lawyer or attorney, toll free at 1-866-510-9099. One of our experienced probate lawyers will gladly assist you.

He co-authored Asset Protection Techniques in Florida, National Business Institute (2004); and authored Family Limited Partnerships in Florida(Chapter: “The Use of Family Limited Partnerships in Estate Planning”), National Business Institute (2002);Key Issues in Estate Planning and Probate in Florida (Chapter: “Protecting the Passage of Wealth”), National Business Institute (1997); Advanced Estate Planning Techniques in Florida (Chapter: “The Use of Family Limited Partnerships in Estate Planning”) National Business Institute (1995).

He has served as a presenter of continuing legal education for the Public Investor Arbitration Bar Association; The Florida Bar (Animal Law Issues Affecting Florida Practitioners, “Trusts and Pets:Establishing Trusts for Pets Under Florida Law”), National Business Institute, and Sterling Education Seminars.He is a member of WealthCounsel, LLC, a national association of estate planning attorneys, and a participating member of WealthCounsel Advisors Forum. Mr. Coleman served as the Program Director for Asset Protection Planning for the Florida Physicians Association, from 1997 to 2006.

What is Probate Administration in Florida?

Qualified Income Trust

If you or a family member need a Qualified Income Trust, also known as a "Miller Trust," so that you can qualify for Medicaid benefits to pay for long term care in a skilled nursing home, you can prepare your QIT online, have it reviewed by an experienced Florida elder law attorney, and have your completed trust within 48 hours, at a reasonable cost. Click here to begin your QIT.

Florida probate law establishes two main types of probate administration for the administration of estates in Florida:

1. Formal Administration involves a probate with assets valued at more than $75,000, and there are creditor claims. Most of this article deals with Formal Administration in the Florida probate courts.

2. Summary Administration, which involves probate of an estate with less than $75,000 of assets that are not exempt from creditors (e.g., Florida exempt homestead), and creditors have either been paid or provision has been made for their payment.

If you need the assistance of a Florida probate lawyer for a probate in Clearwater, or Pinellas County, Florida, whether a formal administration or a summary administration, please contact us toll free at 866-510-9099, or by email us at Info@TheClearwaterProbateLawyer.com . For Summary Administration probate matters we usually work on a fixed fee, or flat fee, basis.

The Florida law of probate also establishes a non-administration proceeding called "Disposition of Personal Property Without Administration." [Back to the Top]

2. WHAT ARE FLORIDA PROBATE ASSETS?

Generally, Florida probate assets are those probate assets in the decedent's sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example:

• a Florida bank account in the sole name of a decedent is a Florida probate asset and is subject to probate, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a Florida probate asset and is not subject to probate;

• a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a Florida probate asset and is not subject to probate, but a policy payable to the decedent's probate estate is a Florida probate asset and is subject to probate;

• Florida real estate titled in the sole name of the decedent or as a tenant in common with another person, is a Florida probate asset (unless it is Florida exempt homestead) but Florida real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset and not subject to probate;

• property owned by husband and wife as tenants by the entirety is not a Florida probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.

• property owned by husband and wife as tenants by the entirety is not a Florida probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.

This list is not exclusive but is intended to be illustrative of the types of assets found in probate. [Back to the Top]

3. WHY IS FLORIDA PROBATE NECESSARY?

Florida probate is necessary to wind up the affairs the decedent leaves behind. It ensures that all of the decedent’s creditors are properly paid. Florida probate also serves to transfer assets from the decedent's individual name to the proper beneficiary of the probate estate. Florida has had probate laws in force since becoming a state in 1845. Florida probate law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid last will and testament.

If you need the assistance of a Florida probate lawyer in Clearwater, or Pinellas County, Florida, please call us at 866-510-9099.[Back to the Top]

4. WHAT IS A LAST WILL AND TESTAMENT?

A last will and testament is a written legal document, signed by the decedent and witnesses, which meets formal requirements set forth by the Florida law of probate. A last will and testament usually designates a personal representative to administer the Florida probate estate and names beneficiaries to receive probate assets. A last will can also do other things, including establishing a testamentary trust and designating a trustee.

Contrary to the belief of some, the decedent’s assets are not turned over to the State of Florida in probate unless no intestate heirs can be found. If there is no will in probate, the probate assets of the decedent will be distributed to the intestate heirs pursuant to Florida intestacy law as follows:

• Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all of the Florida probate estate.

• Surviving spouse and lineal descendants.

1. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the Florida probate estate plus one-half of the rest of the Florida probate estate, and the lineal descendants share the remaining half of the Florida probate estate.

2. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half of the Florida probate assets.

• No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the probate estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.

• No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the Florida probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The Florida probate law provides for further disposition if the decedent is survived by none of these.

• Exceptions to Above. The above provisions are subject to certain exceptions for exempt Florida homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding exempt Florida homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the exempt Florida homestead, with the lineal descendants of the deceased spouse receiving the exempt Florida homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the exempt Florida homestead outright.

If you need the assistance of a Florida probate lawyer in Clearwater, or Pinellas County, Florida, please call us at 866-510-9099.[Back to the Top]

6. WHO IS INVOLVED IN THE FLORIDA PROBATE PROCESS?

While there may be others, the following is a list of persons or entities often involved in the Florida probate process:

Florida probate court forms, probate forms and other legal papers are filed with the Florida Clerk of the Circuit Court, in Pinellas County, Florida, or for the county where the decedent lived at death. A probate filing fee must be paid to the probate clerk to commence the Florida probate administration. The probate clerk assigns a file number and maintains a docket sheet which lists all probate papers filed with the probate clerk for that Florida probate administration. [Back to the Top]

8. WHO SUPERVISES THE FLORIDA PROBATE ADMINISTRATION?

A Circuit Court Judge presides over Florida probate proceedings in the court of probate. The probate judge appoints the personal representative of the Florida probate estate and issues "letters of administration," also referred to simply as "letters" or "letters testamentary." This probate court document shows to the world the authority of the personal representative to act on behalf of the Florida probate estate. The probate Judge also holds hearings with the Florida probate lawyers when necessary and resolves all questions raised during the administration of the probate estate by entering written directions called "orders." [Back to the Top]

9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?

The personal representative is the person, bank or trust company appointed in probate by the probate court to be in charge of the administration of the Florida probate estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix."

The personal representative is directed by the court of probate to administer the estate pursuant to Florida probate law. The duties and responsibilities of personal representative (executor)includes:

• Identify, gather, value and safeguard Florida probate assets.

• Publish a "notice to creditors" in a local newspaper, giving notice to file with the court of probate all claims and other probate court forms and other papers relating to the probate estate with the Florida probate clerk of court.

• Serve a "notice of administration" on specific persons, giving information about the Florida probate estate administration and giving notice of requirements to file with the court of probate any objections relating to the Florida probate estate with the Florida probate clerk of court.

• Conduct a diligent probate search to locate "known or reasonably ascertainable" creditors, and notify them of the time by which their claims must be filed with the Florida probate court.

• Object to improper claims in probate and defend suits brought on such claims against the probate estate.

• Pay valid claims of the probate estate.

• File tax returns for the probate estate.

• Pay taxes for the probate estate.

• Employ necessary probate professionals, such as a Florida attorney, to assist in the administration of the probate estate.

• Pay administrative expenses of the probate estate.

• Distribute statutory amounts or probate assets to the surviving spouse or family in accordance with the Florida Probate Code.

• Distribute probate assets to the beneficiaries of the estate.

• Close the Florida probate administration in the court of probate. [Back to the Top]

10. WHO CAN BE A PERSONAL REPRESENTATIVE?

• The personal representative (executor) of the Florida probate estate could be an individual, bank, or trust company, subject to certain restrictions provided by the Florida Probate Code.

• An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relatives, can serve as personal representative of the Florida probate estate.

• A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative of the Florida probate estate. [Back to the Top]

11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE OF THE FLORIDA PROBATE ESTATE?

• If the decedent left a valid last will and testament, the designated personal representative nominated in the will has preference to serve as personal representative of the probate estate.

• If the decedent did not leave a valid last will and testament, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the intestate heirs of the probate estate. [Back to the Top]

In almost all instances the personal representative must be represented by a Florida probate attorney. Many legal issues arise in probate, even in the simplest estate administration that require the legal advice of a Florida probate lawyer.

The Florida probate attorney for the personal representative gives legal advice to the personal representative on rights and duties under the Florida law of probate, and represents the personal representative in estate proceedings in the Florida probate court. The Florida probate attorney for the personal representative is not the Florida probate attorney for the beneficiaries of the probate estate.

A provision in a last will and testament mandating that a particular Florida probate lawyer, attorney or law firm be employed as the Florida probate attorney for the personal representative is not binding on the personal representative under the Florida law of probate.

If you need the assistance of a Florida probate lawyer in Clearwater, or Pinellas County, Florida, please call us at 866-510-9099.[Back to the Top]

The personal representative is required to use diligent efforts to give actual notice of the Florida probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims with the Florida probate court. A valid claimant is not viewed as an adversary of the personal representative but rather must be treated fairly as a person interested in the probate estate until the claim has been satisfied or otherwise disposed of. [Back to the Top]

For federal income tax purposes, death triggers two things. It ends the decedent's last tax year for purposes of filing a federal income tax return, and it establishes a new tax entity, the "estate."

The personal representative may be required to file the following returns, depending on income of the decedent, income of the estate and size of the probate estate:

• Final Form 1040 income tax return, reporting income for the decedent's final tax year.

• One or more Form 1041 income tax returns for the estate, reporting income for the probate estate.

• Form 709 gift tax return(s), reporting certain gifts made by the decedent prior to death.

• Form 706 estate tax return, reporting the gross estate and deductions, depending upon the value of the gross estate.

The personal representative may be required to file other returns. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent's death (including tax returns that were filed by the decedent or that should have been filed).

The personal representative has the responsibility to pay amounts due to the IRS from the decedent and the probate estate and may be personally liable for those taxes. If a federal estate tax return is required to be filed, an estates taxes closing letter is necessary to clear title to Florida real property, and in some instances in order to close the probate administration with the Florida probate court. [Back to the Top]

15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?

The personal representative is required to send a copy of the Florida probate inventory to the Florida Department of Revenue. IF a federal estate tax return is not required to be filed by the probate estate with the IRS, then the personal representative is required to record in the public records (and file in a Florida formal estate administration) an Affidavit of No Florida Estate Tax Due. If a federal estates taxes return is required to be filed with the IRS, then the personal representative is required to file a Florida estate tax return, Form F-706, with the Florida Department of Revenue."

Regarding Florida's intangible tax, the Florida Department of Revenue may review the probate inventory to determine whether the probate estate, or the decedent while alive, failed to file a required intangible tax return or to pay intangible tax.

For probate estates required to file a Florida estates taxes return, a nontaxable certificate or a tax receipt from the Florida Department of Revenue is required in order to clear title to Florida real property and in order to close a Florida formal probate administration with the court of probate. [Back to the Top]

16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE FLORIDA PROBATE ESTATE?

The Florida law of probate and public policy protects the surviving spouse and certain surviving children from total disinheritance in probate. Absent a pre-marital or post-marital agreement to the contrary, a surviving spouse may have Florida exempt homestead rights, Florida elective share rights, family allowance rights, and exempt property rights. In addition, certain surviving children of the decedent may also have exempt Florida homestead rights, pretermitted child rights, family allowance rights, and exempt property rights. The existence and enforcement of these rights is often best handled with the legal advice of a Florida probate litigation attorney. If you need the assistance of a Florida probate lawyer in Clearwater, or Pinellas County, Florida, please call us at 866-510-9099.[Back to the Top]

17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE FLORIDA PROBATE ESTATE?

Under Florida probate law, as with most other states probate laws, a decedent may entirely disinherit other potential beneficiaries. [Back to the Top]

18. HOW LONG DOES FLORIDA PROBATE TAKE?

For Florida probate estates not required to file a federal estate tax return, the final accounting and papers to close the Florida probate administration are due within 12 months of issuance of letters of administration. This period can be extended by the Florida probate court, after filing probate notice to interested persons.

The federal estate tax return is initially due nine months after death and may be extended for another six months, for a total of 15 months. If a federal estates taxes return is required, the final accounting and papers to close the Florida probate administration are due within 12 months from the date the tax return is due. This date is usually extended by the probate court because often the IRS' review and acceptance of the estate tax return are not completed within that period.

Florida probate estates that are not required to file a federal estate tax return and that do not involve Florida probate litigation may often close in five or six months.

If you need the assistance of a Florida probate lawyer in Clearwater, or Pinellas County, Florida, please call us at 866-510-9099.[Back to the Top]

19. HOW ARE PROBATE FEES DETERMINED IN PROBATE?

The personal representative, the Florida probate lawyer or estate planning attorney and other professionals whose services may be required in administering the Florida probate estate (such as appraisers and accountants) are entitled by the Florida probate code to reasonable compensation.

The probate fee for the personal representative is usually determined in one of five ways: (1) as set forth in the last will and testament; (2) as set forth in a contract between the personal representative of the probate estate and the decedent; (3) as agreed among the personal representative and the persons who bear the impact of the probate fee; (4) as the amount presumed to be reasonable as calculated under Florida probate code if the amount is not objected to; or (5) as determined by the probate judge, applying Florida probate law, the Florida probate code and Florida probate rules.

Likewise, the probate fee for the Florida probate attorney for the personal representative is usually determined (1) as agreed among the Florida probate attorney, the personal representative and the persons who bear the impact of the fee, (2) as the amount presumed to be reasonable calculated under the Florida probate code, if the amount is not objected to, or (3) as determined by the probate judge, applying Florida probate law, the Florida probate code and the Florida probate rules. [Back to the Top]

20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?

Florida probate law provides for several alternate, abbreviated procedures other than Formal Administration for the administration of estates.

Summary Administration is generally available if the value of the probate estate subject to probate in Florida (less property which is exempt from the claims of creditors) is not more than $75,000 or the decedent has been dead for more than two years.

Under Summary Administration, the persons who receive the probate estate assets in probate remain liable for claims against the decedent for two years after the date of death. This period may be reduced in Summary Administration by publication of notice in a local newspaper.

If you need the assistance of a Florida probate lawyer for a Summary Administration probate in Clearwater or Pinellas County, Florida, please contact us toll free at 866-510-9099 or email us at Info@TheClearwaterProbateLawyer.com.

Another alternative to Formal Administration is "Disposition Without Administration." This is available if estate assets consist solely of exempt property (as defined by law and the Florida Constitution) and non-exempt personal property, the value of which does not exceed the combined total of up to $6,000 in funeral expenses, plus the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the last illness.

If the decedent was not a Florida resident at the time of death, an alternate procedure may be used to admit the last will and testament to probate record in Florida. This procedure is used to establish title to Florida real property. When admitted to probate record in any Florida county where the real estate is located, the "foreign will" serves to pass title to the real estate as if the last will and testament had been admitted to Florida probate. This procedure is available only if either two years have passed from the decedent's death or the domiciliary personal representative has been discharged and there has been no probate estate administration in Florida. [Back to the Top]

If the decedent created a revocable trust, in certain circumstances, the trustee may be required to pay expenses of probate administration of the decedent's estate and enforceable claims of the decedent's creditors. In any event, the trustee is required to file a "notice of trust" with the Florida probate court where the decedent lived, giving information concerning the settlor and trustee. [Back to the Top]

This material represents general legal information. Since the Florida probate law is continually changing, some provisions may be out of date. It is always best to consult an estate planning attorney, a Florida probate lawyer, or an elder law attorney about your legal rights and responsibilities regarding your particular case. If you need the assistance of a Florida probate lawyer for a probate matter in Clearwater or Pinellas County, please contact us toll free at 888-492-2468, or email us at Info@TheClearwaterProbateLawyer.com

Legal Notice and Disclaimer. The materials within this website are for informational purposes only. This information does not constitute legal advice and should not be relied upon by any individual. Communication of this information is not intended to create, and receipt does not constitute, the establishment of an attorney-client relationship. Internet users and readers should not act upon this information without first seeking professional legal counsel for your particular circumstances. The information on this website is provided only as general information which may or may not reflect the most current legal information.

The hiring of a lawyer is an important decision and should not be based on advertising alone. Before hiring us, please request that we provide you with additional information about our qualifications.